"Where Intellectual Honesty Has (Almost Always) Trumped Partisanship -- Albeit in a Kind of Boring Way Until Recently -- Since 2005"

Saturday, May 09, 2015

Capital Punishment's Loyal Officer

It was a zinger worthy of a Presidential debate (and almost certainly just as planned). Justice Samuel Alito, confronted Federal Public Defender Robin Conrad in the midst of her oral argument on April 29 in Glossip v. Gross, a case challenging Oklahoma’s lethal injection execution procedure.

Yes. I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions ­­ there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly. Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain?

The diatribe won the lions share of media attention on the case and much of it seemingly approving. The stunning nature of his attack on our adversary system has gone little remarked. Indeed Justice Alito seemed to be refreshingly candid (Chris Christie style): “let’s be honest about what’s going on here.” He appealed to his media audiences common sense that executions could be carried out painlessly (although four of his colleagues doubted that the last time SCOTUS reviewed lethal injections in Baze v. Rees). He acknowledged that abolitionists have been making significant political progress lately winning legislative abolitions, with “red” Nebraska only the latest state legislature to express a desire to rid the law of capital punishment. He invited direct challenge to the constitutionality of the death penalty: an invitation that might have seemed totally empty a few years ago but now seems to have increasing constitutional force (see Jones v. Chappell finding the California death penalty unconstitutional on grounds of being arbitrary and capricious).

But behind this this seemingly candid and refreshing acknowledgment was a remarkable attack upon a lawyer doing exactly what lawyers are supposed to do: zealously advocating for her clients. Justice Alito (echoed by Justice Scalia) cast Federal Public Defender Conrad and her colleagues as duplicitous, pleading the terrible risk of pain facing their clients while working behind the backs of the courts and states to deny states access to chemicals that could painlessly cause death and thus subverting the honorable workings of justice. Absolutely no evidence is presented or even suggested for this conspiracy. In fact, it is a mirror image of reality. The problems American states are confronting in finding drugs to make lethal injections look kind and gentle lie in a growing global movement against capital punishment in which America is increasingly seen as part of an anti human rights “axis” along with Iran, China, and Saudi Arabia. Federal public defenders (and indeed many other Americans) may well sympathize with this global movement but they are hardly relevant to that movement. As Justice Alito must surely know, the European Union-our major trading partner and political military ally and the site of many of the world’s leading pharmaceutical producers---are legally bound to oppose the death penalty where ever it exists. Federal public defenders are even more irrelevant to the completely understandable fact that many businesses will need no additional reason other than publicity to choose to disassociate their products from the deliberate killing of human beings.

The real guerilla war is being waged by death states that continue to pursue executions even as crime remains at historic lows and public opinion turns against this archaic ritual. Many of these states are making a farce of the Court’s own decades long effort to forge a more legal and more humane death penalty by using all means, legal or otherwise, to acquire execution drugs; and obstructing prisoners and their advocates from discovering even the most basic scientific facts about how the state proposes to take their lives. Meanwhile the death penalty majority on the Supreme Court has fought its own battle to prevent continued judicial oversight of state executions. Indeed, the first named petitioner in the case in which Justice Alito delivered his appeal for honesty was executed earlier this year even as the issue he raised was scheduled for Supreme Court argument.

Justice Alito is correct that the times are changing rapidly for the death penalty. In retrospect, the rejuvenation of capital punishment in the 1970s after a couple of decades of declining public support may have had more to do with the high violent crime rates and toxic racial politics of that era---conditions that have changed in many respects---than any core American commitment to capital punishment. Serious challenges to the constitutionality of the death penalty may soon find themselves before the SCOTUS. One can only hope that Justice Alito will bring a less closed mind to those arguments than he did to the ones Federal Defender Robin Konrad (and Justice Sotomayor) presented him in Glossip.

It is our common law tradition that judges are to consider the fate of litigants one at a time, and answer the compelling legal questions that their treatment poses. Yet in his exchanges with Ms. Konrad Justice Alito showed an injudicious interest in capital punishment as an institution. In his willingness to defend the death penalty (and his even odder insistence that if it is to end, it must receive the presumably more honorable dispatch of a direct constitutional assault) Justice Alito seems to be more committed to that institution than to our Constitution.

Justice Alito’s passion for the death penalty recalled for me the curious character of the "Officer” who conducts a “Traveler” to witness the execution of a condemned prisoner in Franz Kafka’s haunting story The Penal Colony. The story, set in a little described “penal colony,” involves an execution ritual in which the condemned are placed into a complex machine known as the “harrow” that effectively kills them by slowly inscribing the name of their crime into their body with metal needles as they are rotated within the harrow. The harrow requires constant tinkering which the Officer enthusiastically supplies. The Officer acknowledges to the increasingly uneasy Traveller that the colony’s commitment to this strange ritual is in fact waning fast, but he remains so loyal to it that he abandons all restraint and ultimately even self preservation in attempting to obtain for it at least one last victim.

Like the penal colony’s harrow, our execution machinery needs constant tinkering, both technical and legal. Some Justices, Harry Blackmun and John Paul Stevens, once supporters of the death penalty, eventually renounced “tinkering with the machinery of death” and denounced the penalty as irreconcilable with commitment to the rule of law. More Justices soon must make clear that their decades long servitude to this institution must come to an end. But perhaps the last will be Justice Alito, who like Kafka’s Officer seems increasingly willing to depart from his role in order defend the machinery of death against law itself.

Note to Prawfs readers:

This post is my first for several years and the first since our founding editor Dan Markel was murdered last August. I had intended to resume after the publication of a new book this past Fall. Dan and I exchanged emails about my return a few days before he died and planned catch up by phone the Friday he was killed. I’ve been too sad about losing Dan to post. I’m still not ready to share some thoughts about his murder (which as a criminal law professor, like Dan, I should in time do). I just want to say that Dan, although the younger colleague, was an inspiration to me about what it means to mature in life and in the law, and to take on responsibility for building something more than your own career. May his memory always be for blessing.

Wednesday, February 09, 2011

Should murderers have the right to vote in prison?

The fact that I'm even thinking about this issue is a testament to the cognitive difference of living in the European Community for the past six months. Five years ago, the Grand Chamber of the European Court of Human Rights held in the case of HIRST v UK, Application No. 74025/01 (read the case online here) that the UK must revise its law banning all prisoners from voting in at least Parliamentary elections. Hirst, who was convicted of manslaughter and sentenced to a discretionary life sentence with a tariff of fifteen years (the minimum term prior to any possible parole, based on retributive and deterrent considerations), claimed among other things, that the voting ban violated his rights under Article 3 of Protocol No. 1 of the European Convention of Human Rights, which provides that:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

The Court declined to specify which prisoners had to be able to vote, noting that in this area, the "margin of appreciation is wide" within which courts should defer to legislative judgments about the purposes of punishment and the conduct of elections; but they clearly implied that under Article 3 of Protocol No. 1, some prisoner must be given the right to vote.

In November, a chamber (roughly the equivalent of appellate court panels in the US) of the European Court of Human Rights took notice of the fact that five years and at least one national election had gone by since the decision in HIRST and the UK had still not revised its law. IN, CASE OF GREENS and M.T. v. THE UNITED KINGDOM, Applications nos. 60041/08 and 60054/08 (read it here) the Court ordered the UK to come up with a new law within six months, and ordered them to pay 5000 Euros in expenses to prisoners with claims currently before the court (with the strong implication that a similar payment would be required for any future litigation, perhaps multiplied by thousands of prisoners who could be expected to bring cases should the government continue to ignore the court).

As noted in yesterday's post, there is something of a backbench rebellion going on among both Tory and Labour MPs who would like to snarl at the European Court and denounce it for interfering with sovereignty. The government, however, is clearly moving rapidly toward a new law (the old one dates back to 1870). This morning on BBC4 radio, Justice Secretary Ken Clarke indicated as much (listen to it here, note there is along interlude on the finances of the Supreme Court before they get to the voting issue), and while he would not say where the government wants to draw the line, he did trot out the clear cases of those who would be excluded, murderers and rapists.

While the European Court may well approve not only the exclusion of murderers and rapists, but lots of other persons sent to prison for significant sentences (after all they did talk about "the margin of appreciation" being "wide" for the political choice element), there are some good reasons why a government less committed to populist punitiveness might well recognize a duty to let even murderers vote and an outside chance the Court will make them do it.

First consider that the Court declined in HIRST itself to question the legitimacy of the governments goal of punishing offenders through denying them the vote (choosing instead to focus on proportionality). But they may have to reach this issue in the next case. Is denying a murderer the right to vote for Parliament a legitimate form of punishment? In HIRST, the Grand Chamber did say this in paragraph 69 of its judgment:

In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention.

This expresses a theme elaborated even more by the The European Prison Rules (Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe) which states in paragraph 64:

Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.

While the recommendations of the Committee of Ministers are not binding on the Court, they have been influential. The essence of the argument is that, at least in Europe, punishment is limited to deprivation of liberty (and all that may be administratively necessary to accomplish that). Moreover, if there is to be a surplus beyond deprivation of liberty (the express argument of the UK government in HIRST), it surely cannot be one focused on status degradation, which offends the dignity principle running through much of the binding treaty law to which the UK is a signatory. For example, Article 10 International Covenant of Civil and Political Rights provides:

"1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." (emphasis added)

I am taken, for the moment, with an analogy suggested in the Grand Chamber's judgment in HIRST to a prisoner's family status. In paragraph 69, the Court articulated examples of rights that prisoners do not lose by being imprisoned, and the very first one that they mention, other than the right not to be abused, is that "they continue to enjoy the right to respect for family life."

Should a murderer have their parental rights and duties terminated by conviction and imprisonment (beyond those duties made impossible by loss of liberty and penal segregation)? Is not being a parent just as honorable a status in our societies as being a voter? In fact, both mix duty and honor.

Beyond punishment, the UK government could claim that banning murderers and rapists is essential to preserve the integrity of the electoral process. Even assuming that murderers and rapists would vote their class interest in weakening criminal laws and law enforcement, what plausible argument is there that any competitive candidate standing for MP would seek to attract such votes by advertising their desire to be as lenient as possible with murderers and rapists, or weakening law enforcement to assure that fewer of them would get caught?

Perhaps there is an argument that if all prisoners were allowed to vote in the Parliamentary constituency where they are currently serving time they could swing a close election. But the government has a easy solution to that problem. It can allow prisoners to vote in the constituency in which they lived prior to incarceration (which is more likely to be their relevant community in any event). Even under conditions of mass incarceration (and just between the two cases, the numbers of potentially effected prisoners in the UK had grown by tens of thousands), there is no plausible scenario under which prisoner votes would alter the policy positions taken by candidates on law and justice issues.

On the other side there are compelling arguments that voting is an example of pro-social, non-self interested behavior that should be an integral part of the rehabilitative process which the UK remains committed to (at least in theory).

Thursday, August 26, 2010

What Can You Accomplish as a Lawyer? Renowned Lawyer and Legal Scholar Bruce Winick Has Died

I've just received the sad news that my friend and former colleague Bruce Winick, distinguished professor of Law & Medicine at the University of Miami School of Law for some 36 years has died. Bruce will be most remembered as the co-founder, along with David Wexler of the University of Arizona, James E. Rogers School of Law, of the extraordinary scholarly and law reform enterprise known as Therapeutic Jurisprudence. TJ to its many friends, is the scholary study of how law and legal procedures influence the psychology of those who are subject to it (or practice in it), as well as the law reform project of altering the law to optimize its psychological advantages and minimize its psychological disadvantages. TJ had its intellectual problems. As Elyn Saks argued some years ago, there are all too many circumstances when the psychological consequences of legal choices are cross cutting (as for instance in forcibly medicating a person suffering severe psychosis). Still, one would be hard pressed to name a body of academic legal scholarship that has had more law reform significance in the past quarter century. Scores of drug courts, mental health courts, and other "problem solving" courts of all kinds in the US, Europe, Australia and elsewhere no doubt, trace their intellectual DNA to TJ. In an era when criminal law in the US has been dominated by a widespread surrender to populist punitiveness, TJ was practically the only significant counter force in law reform.

Amazingly, Bruce came to TJ well into his career, after years of impressive legal accomplishments including overturning New York's death penalty in the late 1960s, litigating many of the most influential selective service cases in the Vietnam era, and joining with Miami colleagues Irwin Stotzky and Ira Kurzban in litigating the Haitian refugee cases before the Supreme Court in the early 1980s. Bruce was the author of more than ten books and scores of law review articles, mostly in the last decade and half during which he was functionally blind.

More than anything I will remember Bruce's sheer joy at being a lawyer and a law professor. Oblivious to the slings and arrows that puncture most egos, Bruce was simply carried away by a sense of the enormous privilege it was to argue before courts on behalf of clients, to teach law and medical students, and to share his ideas though his prodigious ability as a writer and speaker. In this latter aspect, Bruce will be with us for decades to come. Just today, well before I heard the news, I was reading several of his articles on TJ and civil commitment (also the subject of 2005 book) for some of my own research on reforming California's civil commitment law.

Wednesday, August 04, 2010

Do Conservatives Govern through Crime? Sometimes

Current European politics offers an interesting window into the
relationship between party ideology and the attractions of governing
through crime. As noted last month, Britain's Conservative led
coalition government is in the midst of retrenching on the previous
Labour government's embrace of tough on crime policies and politics.
The latest and most dramatic move came last week, when the government
announced it would move away from the much debated Anti-Social
Behavioral Orders (or ASBOs as they were not quite affectionately
called).

One of New Labour Prime Minister Tony Blair's signature
governing through crime strategies, ASBOs allowed anything that caused
some people to fear others to be prohibited on pain of arrest. The
announcement that ASBOs would be replaced with new approaches
emphasizing restorative justice rather than punishment brought
predictable howls from former New Labour ministers. According to a
story by Alan Travis in last week's Guardian (read it here):

Two
former Labour home secretaries, Alan Johnson and David Blunkett,
attacked May's decision. Johnson, in a piece for the Guardian's Comment
is Free, argued that asbos had made a huge difference in cutting crime
and disorder: "If the home secretary is to restrict the opportunities
for the police to use asbos and other measures currently available then
this will be yet another example of this government going soft on
crime." Blunkett went even further and claimed May's speech posed "a
major threat to the lives of those at the very sharp end of criminality
and dysfunctional communities".

Meanwhile, across
the channel, conservative French President, Nikolas Sarkozy, defended
his police after much criticism over rough handling of women and
children during an eviction of members of the Roma minority from a
squat. According to Lizzy Davies in the Guardian (read it here) the French President promised a "national war on crime":

In
a bellicose speech in the south-eastern city of Grenoble on Friday, the
president said he would wage a "real national war" on crime, announcing
plans to revoke the French citizenship of anyone "of foreign origin"
who threatened the life of a police officer.

Implying a clear
link between France's levels of immigration and its crime, Sarkozy
said: "We are suffering the consequences of 50 years of insufficiently
regulated immigration, which have led to a failure of integration."

The
lesson for me, at any rate, is that governing through crime is not a
product of conservative ascension or Neoliberalism per se (the British
coalition is much more Neoliberal than Sarkozy), but a recourse that
politicians of all ideological stripes find tempting at a time when
efforts to govern through economic and social policy are prone to
numerous obstacles.

Wednesday, July 14, 2010

Tories Preparing to Lead UK Away from Mass Incarceration?

The new UK Justice Minister, veteran Conservative politician Ken Clarke,
is roiling British politics by suggesting openly that the UK's massive
increase in imprisonment over the last decade and a half is not, I
repeat, is not, the main reason for drops in crime experienced there.

There
is and never has been, in my opinion, any direct correlation between
spiralling growth in the prison population and a fall in crime," he
said. "Crime fell throughout most of the western world in the 1990s.
Crime fell in countries that had, and still have, far lower rates of
imprisonment than ours.

"Crime has fallen in Britain throughout
a period of both rising prison populations and throughout the same
period of economic growth, with strong employment levels and rising
living standards."

I've argued for a long time that
governing through crime was not a righwing agenda, but a direction that
both left and right exploited at the cost of their own values. With New
Labour under Blair and Brown having supported a major prison expansion,
the timing is perfect for the Tories to lead a change in direction,
although it contradicts the penal policies pursued by the last Tory
government in the 1990s.

Attention Meg Whitman (and Jerry Brown), you may be the right leader to take California out of mass incarceration!

Wednesday, June 16, 2010

Governing through War

When I talk to people about how the "war on crime" transformed American
politics and law since the late 1960s (the subject of the book
Governing through Crime) one of the most interesting questions I get is
whether the problem is more with making "crime" such a privileged
target of national anxiety and identity, or whether the problem isn't
with the "war on" metaphor itself, whether it attaches to cancer,
poverty, terrorism, or crime. My short answer is that "crime" is the
problem, and the "war" metaphor is a historically durable feature of at
least US national governance. President Obama's first "Oval Office"
address last night (read the transcript),
brought the question back to the fore.

While President Obama never uttered the "w"
word, he all but declared war on the catastrophic oil leak in the Gulf
of Mexico and on America's dependence on oil more generally. Sounding
downright Churchillian, the President told Americans:

But
make no mistake: We will fight this spill with everything we’ve got for
as long as it takes. We will make BP pay for the damage their company
has caused. And we will do whatever’s necessary to help the Gulf Coast
and its people recover from this tragedy.

Tonight I’d like to
lay out for you what our battle plan is going forward: what we’re doing
to clean up the oil, what we’re doing to help our neighbors in the
Gulf, and what we’re doing to make sure that a catastrophe like this
never happens again.

The war, as a metaphor for
powerful and just governmental action of all sorts, perhaps dates from
the Crusades and has been reproduced in Protestant culture by a whole
series of revival and social improvement movements in the 19th century.
I believe (on pure speculation) that its installation as the preferred
metaphor for US Presidents seeking a national mandate for action dates
to World War II and FDR's rhetorical mastery in unifying a potentially
very divided nation behind the real war against Fascism. The Cold War
against the Soviet Union and its allies extended war into a generalized
mode of struggle on every front. Presidents Kennedy, Johnson, and
Nixon, liberally declared war on poverty, crime, cancer, and drugs.
President Obama explicitly invoked World War II and implicitly invoked
the Cold War through mentioning the Moon landing project (which was at
bottom a Cold War military operation).

But the one
approach I will not accept is inaction. The one answer I will not
settle for is the idea that this challenge is somehow too big and too
difficult to meet. You know, the same thing was said about our ability
to produce enough planes and tanks in World War II. The same thing was
said about our ability to harness the science and technology to land a
man safely on the surface of the moon. And yet, time and again, we have
refused to settle for the paltry limits of conventional wisdom.
Instead, what has defined us as a nation since our founding is the
capacity to shape our destiny -– our determination to fight for the
America we want for our children.

While other
societies seem much less attracted to this metaphor, its appeal in the
US is twofold. First, our national government is extraordinarily weak
constitutionally speaking and easily diverted from sustained efforts at
social change. Combined with an individualist ideology that yields
little presumptive share to the common good, it is understandable that
Presidents have found it essential to invoke war metaphor if they want
to project national power beyond its current brokered arrangements.
Second, most of our wars, and all of them in the 20th century, have
been fought primarily on other shores. With inflated spending and
normally troublesome young men shipped overseas to kill others,
war-time has often been "good-times" in America.

War as a
metaphor brings some nasty features including intolerance, excess,
tunnel vision, and a general aggrandizement of power and authority.
However these are just the flip sides of its virtues. In my view it was
the crime part of the equation that caused all the problems. A "war on
crime" was especially destructive because it encouraged Americans to
push all kinds of social problems into the constricting metaphor of
crime with its focus on individual bad conduct, its heavy legacy of
racial domination and demonization, and it empowered some of the (at
the time, in the 1960s through the 1980s) most repressive and
residually racist institutions in American government including local
prosecution, police and prisons.

In contrast, a "war on oil" or
"carbon" or "infrastructure failure" or whatever, exactly, President
Obama has in mind --- is likely to unleash very different (if
inevitably unpredictable) dynamics. The focus on large corporations
(like BP), highly technical risks (like deep water drilling or climate
change), and America's own consumption patterns, is likely to encourage
a very different kind of "idealized citizen subject" than the "crime
victim" projected by the war on crime. The call to reinvent regulation,
produce new technologies, and change how we live, is likely to empower
sectors of government at the national and state level that are
relatively new and unshadowed by troubling legacies of failure and
scapegoating.

Could we govern without fear? Love can work for a
lifetime among individuals, and among communities for a summer or two,
but I'm afraid at 50 I find myself with Hobbes on the reliability of
fear. Not necessarily fear of the sovereign, but more precisely a
sovereignty constituted out of fear.

Tuesday, May 25, 2010

Shaming Three Strikes

If we are to ever escape the gravitational pull of mass incarceration,
we are going to need not just more jeremiads against our current
regime, but positive accounts of pathways out. Emily Bazelon in the
Sunday New York Times Magazine provides just such an optimistic account
of an emerging challenge to the hegemony of California's toxic
"Three-Strikes" law which is rapidly filling its prisons with expensive
to manage (because largely hopeless) and permanent prisoners. Her
account is especially interesting because it links up two elements
generally missing in the discussion of whose responsible for mass
incarceration which tends to focus on governors, legislatures,
correctional officer unions. Bazelon focuses on the interesting
alignment of a Republican District Attorney of Los Angeles (now running
for Attorney General), and a law school clinic at Stanford aimed at
challenging 3-Strike sentences through collateral appeals.
The
1994 law, enacted by a panicking legislature and then sealed in the
Constitution by voters at the high-tide of governing through crime in
California and the United States. The law's success was widely
attributed to public revulsion over the murder of 12 year old Polly Klaas.
But the kidnapping and murder of young girls was a rare event in any
community then and now. As Frank Zimring and his coauthors suggested in
their 2003 book on Three Strikes, Punishment and Democracy,
the law was a really a vote of no-confidence in government itself.
Coming, as it did, more than a decade into California's prison boom,
3-Strikes marked the fatal contradiction of governing through crime; that it makes people trust government even less over time.

Unlike
most Three-Strikes laws that discharged the pent up populist
punitiveness of that politically frustrated year (Clinton's promised
national health program crashed and burned) in largely symbolic
measures, California's law was designed to maximize the incarceration
fall out by applying to non-violent, non-serious crimes (for the 3rd
strike) and producing a doubling of the sentence for a second serious
or violent crime. According to Bazelon's reporting:

About
3,700 prisoners in the state are serving life for a third strike that
was neither violent nor serious, according to the legal definition.
That’s more than 40 percent of the total third-strike population of
about 8,500. Technically, these offenders are eligible for parole after
20 years, but at the moment, the state parole board rarely releases any
prisoner early.

Efforts to reform the law,
including a 2004 voter initiative, have been defeated by a coalition of
law enforcement organizations and virtually the entire political class
of the state.

Bazelon's focus on Los Angeles DA Steve Cooley
highlights the enormous power that laws like 3-Strikes have given
prosecutors in California and all over the country. In California,
where parole release applies to only a handful of life sentence crimes
(including 3-Strikers after 25 years), prosecutors have unique
authority to decide how many people will go to California prisons and
for how long. Any felony can warrant a state prison term, and thanks to
the ratcheting up of sentence ranges over the years, relatively few
even permit probation as an option. Three-Strikes operates as a kind of
individual "nuclear option" that prosecutors can use at will against a
very wide range of repeat offenders.

As Bazelon reports, Cooley
has set himself apart from other DAs in the state by explicitly stating
that three strikes should only be used against a select group of
eligible defendants:

Cooley ran for D.A. on a
platform of restrained three-strikes enforcement, calling the law “a
necessary weapon, one that must be used with precision and not in a
scatter-gun fashion.” In office, he turned his critique into policy.
The L.A. district attorney’s office no longer seeks life sentences for
offenders like Norman Williams or Gregory Taylor. The presumption is
that prosecutors ask for a life sentence only if a third-strike crime
is violent or serious. Petty thieves and most drug offenders are
presumed to merit a double sentence, the penalty for a second strike,
unless their previous record includes a hard-core crime like murder,
armed robbery, sexual assault or possession of large quantities of
drugs. During Cooley’s first year in office, three-strikes convictions
in Los Angeles County triggering life sentences dropped 39 percent

Cooley,
who would retain much of 3-Strikes prosecutorial power even under his
reform proposal, is anathema to fellow DAs who have virtually
unanimously rejected his modest reform proposal. Cooley's example
suggests that much of the state's problem could be solved by a tacit
alliance between the DAs of largest population counties even without a
statewide fix but they would have to brave the antagonism of the
organized DAs of the state. But it also underscores the difficulty of
escaping mass incarceration when elected politicians with a built in
incentive to campaign on tough sentences are effectively in charge of
how much money we spend on prisons. Bazelon see's Cooley's possible
election as Attorney General (he is the leading Republican contender at
the moment) as a pathway to a statutory reform of Three-Strikes long
the Cooley lines. But if his reform ideas would hardly address the
powerful incentives to off-load local offenders into state
incapacitative custody (and financial responsibility) that will remain
with county level DAs. Indeed, as AG Cooley may well want to mend
fences with his fellow DAs (if he ever hopes to be Governor),
suggesting that his 3-Strikes proposals are likely to be his closing
not his opening

This is why the other side of Bazelon's
imagined coalition is so important. It may seem unlikely that a
boutique clinic like Stanford Law School's Criminal Defense Clinic,
could make much of a difference in this situation. As the founding
director, Michael Romano, freely admits, they cherry pick cases to find
the most sympathetic possible 3-Strikers, leaving scores of other
inmates with little hope of relief. I had a chance to visit with
Romano, Clinical Fellow Galit Lipa, and the spirited band of students
who staff the nation's only clinic devoted exclusively to three strikes
prisoners the Thursday before Bazelon's story appeared to talk about
the broad picture of overturning mass incarceration in California.

Nobody
believes this can be accomplished one case at a time. But the victories
that the clinic has been winning, discussed in Bazelon's story, point
to a possibility unlikely to surface this year (or any time soon) in
the electoral political field, that is a sense of shame. The clinic's
legal arguments are also factual ones. They present judges with the
spectacle of individuals cast into a hopeless fate of likely permanent
imprisonment based on the premise not that they deserve it for their
crimes, but expressly on the grounds that our security requires their
total loss of freedom, security, or hope. That is a trade off that has
become far more politically visible since 1994 largely because of the
war on terror. It is not that judges, let alone the broad public, is
unwilling to make that kind of sacrifice (indeed the war on terror may
have made us more prepared to do so). But judges and the public
appreciate that to make this trade off without some basic guarantees of
the quality of the risk assessment on which this individual is going to
be cast into hell (not for his sins, but for his future dangerousness)
is to deny the basic humanity and dignity of the individual. In the
criminal justice system, that guarantee has to come from the adversary
process; that reflexive exercise of prosecutorial discretion in the
name of public interest and justice, and the vigorous contestation of
the prosecutorial case for dangerousness by defense lawyers with
resources and skills to assess criminal risk.

In this context
three strikes is a disgrace. There is no pretense of an adequately
investigated and tested assessment of risk. The entire system should be
struck down as "degrading treatment" under Article 5
of the Universal Declaration of Human Rights (to which we are a
signatory). The absence of an effective judicial remedy does not doom
this human rights based challenge. As we have shown with climate change
and with issues like obesity, Americans are capable of being
embarrassed by their own excess consumption and supporting change.
Three Strikes is to the consumption of security what McDonald's Happy Meals are to obesity and what the Ford Expedition
is to climate change. Hopefully the work of the clinic, and possibly
Steve Cooley's campaign (if he is forced to defend against attacks on
his reform proposals) will begin to make more visible to Californian's
just how shameful their consumption choices in criminal justice really
are.

Friday, May 21, 2010

Governor Schwarzenegger and the "Devolution Solution" (to the Prison Crisis)

I've argued for a long time that
county government, with its more realistic view of crime and local
knowledge, can hold the key to resolving our endless prison crisis if
they can take back their prisoners and the resources locked up in state
prisons. Hidden in the depths of his "May Budget Revisions"
(the adjustments to the annual January budge proposal that is based on
actual revenue returns during April tax season and thus considered far
more realistic) California Governor Schwarzenegger has included a proposal to have some state prisoners serve their
time at the county level.

To improve the success of
felony probationers, and other offenders supervised or programmed at
the local level, and reduce jail and prison incarceration, the Administration proposes a system of block grants to provide evidence‑based programming and other probation and jail services at the local level. The block grants will be funded from a portion of state savings generated by having non‑sex offender, non‑serious, non‑violent offenders convicted with sentences of three years or less to
serve their felony sentence in local jails. The state will provide the
counties with approximately $11,500 per offender, to be allocated at
the local level, for programs and services such as probation
programming, drug courts, and alternative custody. A decrease of $243.8
million in 2010‑11 is associated with this proposal.

Not
as splashy or as publicized as the Governators' January bizarre proposal to
link prison and higher education funding, this idea reflects some of
the best ideas in correctional reform including devolution from state
to county and an emphasis on funding programs that can prove success
based on empirical evidence (had we followed that model during the
1980s and 1990s, we would have stopped sending more people to prison
long ago). As is typical in California in the era of Governing through Crime,
the program comes wrapped in promises that it won't apply to prisoners
the public really fears "sex offenders", "serious offenders," "violent
offenders." These broad categories likely hold many individuals who
could be managed more effectively (and more efficiently) at the county
level.

If he gives the devolution (from state to county)
solution more of his public attention and charisma, it could turn out
to be the most important legacy of the Governator. Schwarzenegger
deserves huge credit for, in effect, declaring the era of "Big
Incarceration Government" over, but until now his forward proposals
have lacked seriousness and vision. Perhaps the action hero knows that
many failures can be forgiven in a strong ending.

The May
Revise (as it is often called) also includes an intriguing note that
the state is shifting its policies toward committing sex offenders
serving state prison sentences to the state's violent sexual predator
program of indeterminate confinement following prison with the result
of fewer expected inmates in the program (which has become an expensive
new death row with little prospect of release for its residents). As an
adjustment to the mental health portion of the budget, the May Revise
includes the following:

A decrease of $7.2 million
in the Sex Offender Commitment Program to reflect anticipated savings
in the Sexually Violent Predator Program primarily due to a shift in
the type of referrals from the California Department of Corrections and
Rehabilitation.

Tuesday, April 20, 2010

Haunted Houses (part, whatever)

How do you know you are middle class in America? Do you open your
wallet and look at how much cash is there (my Uncle Lou Jacobs used to
carry around huge wads of twenties, fifties, and hundreds,way back in
60s, but he was a Purple Gang associate and may have been unusual even
for his era)? Do you look at your family pictures and think with pride
how many generations of your lot went to college? Do you check your
employee ID, health insurance membership or social security card?

I
think most Americans (at least until the music stopped in 2008) looked
out at their home, probably through the car window, on the way to work
at 4:30 am, or on the way back at 9:15 pm. Does my home stand physically
apart from my neighbors? Does it have a bit of green between us? Does
it abut a cul de sac, preferably or at least a curving suburban lane,
entered through a drive way, with perhaps a basketball hoop? And most
of all, do I "own" it (even if that means I own 5 or now perhaps -50
percent of it)?
For too many Americans, being able to answer
yes to most of those questions is what assured them they were middle
class, no matter how lousy (or how many) jobs they had to work, no
matter how far they had to commute, no matter how distant any amenities
like parks, libraries, museums, or shops might be from their door.

Here
in the Bay Area, where prices to own a home on one side of the Bay or
the other long ago went beyond starter range for most middle class
families, pursuing that middle class status meant locating in places
like Pittsburgh and Antioch, where subdivisions rapidly filled in the
canyons in the dry hills behind San Francisco and San Pablo bays. Its a
place now haunted by the ruinous financing schemes behind the housing
bubble. But it is also haunted by the unsustainable life styles that
government promoted in this country right up to the crisis, an in the
name of producing more secure "crime free" communities. The perverse
relationship that Americans have developed to their houses (that has
gone along with a loss of serious political movements directed at jobs)
has a terribly dark side to it. Its a dark side of methamphetamine, of
domestic violence and child abuse, of heart attacks and bankruptcies.
And occasionally a twilight zone of unspeakable sadness. Case in point,
penned by veteran crime reporter Henry Lee in today's SFChronicle, "Antioch baby girl dies after being left in car."

Sofia
Wisher, 7 months old, was sitting in her car seat in her parents'
Toyota station wagon when the family pulled up to its Antioch home late
Saturday after doing laundry at a relative's home. Each parent thought
the other would be taking Sofia inside.

Tragically, neither did....

The
parents, both of whom work two jobs, went to bed about 3 a.m. Each saw
the door to their infant's room closed and assumed the other had put
her in her crib, Orman said.

The parents told police that Sofia
was a "light sleeper, so it wasn't their practice to be going in there
all night checking on her, because she'd wake up," Orman said.

Wednesday, March 24, 2010

"We can't control ourselves": California Corrections in the National Spotlight

The New York Times gives California's prison crisis and parole reforms front page billing today in an excellent article
by Randal Archibold. The litany of problems will be familiar to readers
of these posts. Our massively overcrowded prisons are being slowly
reduced only under great pressure from federal courts. The main
solution is to reduce the capacity of the state to return paroled
prisoners for relatively minor crimes by eliminating parole supervision
altogether for many and creating more alternatives to reimprisonment
for others. Of course problems have arisen with early implementation,
and some backlash is brewing. But the key line in what is mostly an
up-beat story is that of State Senator Mark Leno (Dem San Francisco)
who sums up the problem in one sentence, "we can't control ourselves."

Note
the paradox that we are talking about a system of social control, or
corrections as we like to call it, whose fundamental purpose is to
promote law and order, but which is fundamentally out of control. But
it is not the administration of the prison Leno is talking about.

But
even with the progress in recent months, State Senator Mark Leno, a
Democrat from San Francisco who helped push through changes in the
prison system, suggested that further reductions would be a hard sell.
Mr. Leno called the changes under way “a noble effort” and the best
that could be achieved in the current political climate.

Many lawmakers, he said, still want to lengthen sentences and spend more on incarceration, both politically popular notions.

This
is why I cannot yet agree with my friend Stanford Law professor and
criminologist Joan Petersilia, who has done more than anyone to create
the criminological conditions for rationality in California penal
policy, and who is quoted in the article as suggesting California has
been through a "seismic shift." The shift is not yet near seismic
enough. Or perhaps, we can agree that the system has experienced at 6.4
on that continuous seismic scale, but not the kind of 8.0 that would
allow us to truly rebuild from the rubble of our current system which
is flawed right down to its molecules. The major problem, as Mark Leno
underscores, is not penological but political. So long as parole reform
remains the limits of this (I think ironically characterized by Leno)
"noble effort", we remain inside a prison crisis whose vicissitudes I
may well be charting into my retirement, or furlough-hood (if the state
budget caves sooner).

Thursday, March 18, 2010

Executions in Iran and North Korea

Students of the sociology of punishment are getting the rare
opportunity to look back into the history of penal evolution by
watching the penal behavior of two polities that are arguably
throwbacks to the absolutist model of government, Iran and North Korea.

According to Nazila Fathi's reporting
in the NYTimes, Iran's government was preparing to execute six
protesters arrested in December protests this Sunday, for the charge of
"waging war against God."

Meanwhile, AP reports that North Korea has executed a former treasure official, not for bribery, but because of the failure of his currency reforms.

Pak
was accused of ruining the nation's economy in a blunder that also
damaged public opinion and had a negative impact on leader Kim Jong
Il's plan to hand power over to his youngest son, Yonhap said.

In his germinal article, Two Laws of Penal Evolution (1902) [for a translation
published in 1973, not free unfortunately), Emile Durkheim predicted
that the general trend toward leniency in punishment, by which he meant
the shift away from capital punishment in particular, and toward less
intense punishment of all kinds, had exceptions. Two were when states
embraced either theocracy or revanchist forms of absolutism. For the
general principle of leniency reflects the rise of the individual as
the moral center of penal retribution and away from a demand to punish
as away of responding for an affronted God or Sovereign. The US may
seem an outlier for executing murderers, but we do so in manner that
Durkheim would think quite consistent with our liberal values (mainly
an effort to honor the victim and protect others, although a misguided
one in my view). In Iran offending God (or his political party) and in
North Korea, to interfere with the passing of royal succession remain
capital crimes.

One detail of the Iranian case is particularly interesting for
Durkheimians. Apparently Sunday is being chosen because it marks the
beginning of a Halloween like traditional festival that the Islamic
regime considers "unIslamic."

The tradition, the
Feast of Fire, goes back thousands of years to Zoroastrian times and
has been banned in Iran in recent decades because of its non-Islamic
roots. The opposition had called for its celebration this year as a
sign of protest.

My bet is neither of these Dinosaur like regimes
will be around in twenty years (or perhaps even ten) so students get
busy studying them (a bit hard, I admit).

For those following my Legal Studies 160: Punishment, Culture and Society
course, who are really bored over Spring break, my question to you is
how would Marxist or Foucauldian analysts see the use of capital
punishment in recent weeks by these two regimes?

Wednesday, March 03, 2010

Paging Dr. Durkheim

Its been a busy week, but I would be remiss to let Campbell Robertson's fine story on murder, capital punishment, and wrongful conviction in post-Katrina New Orleans go by with out a comment.

Early one morning in June 2006, when this city was only half full and
in many areas still desolate from the flooding after Hurricane Katrina,
five men were shot to death in an S.U.V. in the Central City
neighborhood.

The killings sent the city into an uproar,
galvanizing politicians, who spoke of “Hurricane Crime,” and adding
urgency to the city’s request for hundreds of Louisiana National Guard
soldiers to return and patrol the streets.

The criminal case
that followed was just as incendiary in many ways, and it ended this
past August with a death penalty verdict, the first in a dozen years in
a New Orleans murder case, against a 23-year-old man named Michael
Anderson. It was a trophy verdict for the district attorney’s office, a
sign that law and order had triumphed in one of the city’s most heinous
and high-profile crimes.

But there is a problem. New evidence
from the state’s key witness released in early January by the district
attorney’s office — evidence that the office had for over two years —
could put a hole right in the middle of the case against Mr. Anderson.

The city's response to the murder is a classic reminder of Durkheim's
claim that crime and punishment form one of society's most powerful
devices to reaffirm its existence as a moral community. Although New
Orlean's is not an entire society, that community was devastated by the
flood, which quite literally displaced its population, and by the clear
failure of social institutions to protect the populace. The murder only
nine-months into the recovery was clearly read by New Orlean's citizens
as a direct challenge to the existence of common consciousness in the
city, just the kind of event that Durkheim predicted would be met by
the most explosive demands for punishment.

But the terrible
miscarriage of justice that may have subsequently occurred is a
reminder of how double edged the creation of professional law
enforcement is for the evolution of social control. On the one hand,
unlike the "primitive" societies that Durkheim compared "modern" Europe
to, professional law enforcement brings about the potential to solve
crimes that would have gone unsolved altogether in the past, and
perhaps to avoid lynchings and other popular miscarriages of justice.
On the other hand, the creation of distinct institutions with unique
responsibility for addressing the communities desire for punishment,
and significant powers to coerce testimony, opens the awful possibility
that unconsciously or consciously, law enforcers could seek to give the
community the Durkheimian release of convicting and condemning a target
of their rage, even if they have the wrong man. I'm not saying that
many (let alone most) in law enforcement succumb to this temptation,
but we need to start by acknowledging some of the cultural forces that
facilitate it.

Saturday, February 13, 2010

Climate Change: Is our social world "heating up"?

I'm prone to dismiss the endless media hype of the angry Americans who were confronting congressional Democrats at the "town hall" meetings on health care back in August or telling pollsters this month that they are less trusting in the federal government doing the right thing than at any time in history. Politics after all has a long history of hyper-ventilating and the media has long thrived on it. But is the "anger thing" in politics part of a larger trend toward our social world heating up more with emotions, especially the emotion of anger? May be I've been influenced by teaching Durkheim recently in my course on Punishment (he is the great social theorist of social heat) and I'm way of out of my domain here sociologically speaking, but here are a few observations and theories that might prompt the more knowing among you to set me straight on this.

One of my undergraduate Legal Studies students is doing an honors thesis on the amazingly heated comments that readers leave the comment fields of respectable online newspapers these days (both here and in South Korea). I don't remember any comparable public expressions in my youth that weren't spray painted on the walls of Chicago's many viaducts.

Corporate choices, whether by "free" internet service companies like Google (read Miguel Helft's article about Buzz NYTimes) or three dimensional service providers like JetBlue Airlines (marking the anniversary of last year's Valentine's Day snowstorm public relations disaster; read Susan Stellin's article about how airlines have responded in the NYTimes), seem to unleash massive amounts of fury by affronted customers.

Ok, I get it, the internet, twitter, facebook, cell phones, all make it possible to express this seething emotion, perhaps it was there all along? But I don't remember seeing it even close up. The only time I ever saw my father, who had a temper, get that mad at corporate conduct was once when a Brinks Truck blocked his exit from a parking place (and he was a Marxist for much of his life).

So here is an alternative theory. Our contemporary lifestyle is more and more penetrated by commercial relations. We don't just turn to companies to purchase the products and services needed by our relationships, baby carriages, washing machines, etc, we rely on them to sustain those relationships in their most basic and vital dimensions. This has opened a vast new terrain for profit and allowed the creation of flexible high speed life styles that allow for enormous productivity, but it has also opened a vent to some very deep and ugly emotions. Will these inevitably "heat up" our social and political climate?

Friday, February 12, 2010

Justice Anorexia: Why We Imagine Our Courts to be so Lenient

Anorexia Nervosa is an eating
disorder that leads sufferers to undergo often life threatening
disciplining of their food intake in an effort to ward off imagined
obesity. Something similar seems to beset our collective penal
imagination. Despite decades of growing penal severity that have given
us the world's largest prison population (and not just in per capita
terms) and the most severe sentences, most Americans still imagine our
courts to be the leaky and lenient institutions they were (unfairly)
depicted as being in 1970s backlash movies like Dirty Harry (1971). As our justice system comes instead increasingly to resemble the hardened core of the robotic killing machines in the Terminator
series, our ability to set proper limits to our own quest for security
is very much in question. The political logic of this cognitive bias
was on display this week in the growing controversy over whether or not
terrorism suspects should be tried in civilian federal courts, or
instead subjected to military tribunals such as those that very
occasionally have operated at Guantanamo.
As Scott Shane ironically notes in the opening to his excellent wrap up article
in the New York Times, John Walker Lindh, the so-called "American
Taliban" who was tried in a federal court received twenty years (in a
plea bargain to avoid possible life in prison), while David Hicks, an
Australian Jihadi with a
similar profile ended up walking away from a Guantanamo tribunal with a
sentence of seven years, most of it already served.

On the op-ed page, former FBI special agent, Ali H. Soufan, notes that federal law is plenty tough on supporters of terrorism:

Prosecutors
have at their disposal numerous statutes with clear sentencing
guidelines. Providing material support, for example, can result in a
15-year sentence or even the death penalty if Americans are killed.

No
doubt, much of the criticism of Attorney General Eric Holder for
announcing that terror suspects would be tried in federal courts is
cynical political maneuvering by Republicans who were willing to remain
silent while the same approach was pursued by the previous
administration. But the reason it rings true for many people and the
media, is because for decades, politicians of both parties, have
portrayed the federal courts as perennially "soft on crime."

Tuesday, February 09, 2010

Our Rotten Prisons (A California Gripe)

A Penitentiary-house, more particularly is ...what every
prison might, and in some degree at least ought to be, designed at once
as a place of safe custody, and a place of labour. Every such place
must necessarily be, whether designed or not, an hospital -a place
where sickness will be found at least, whether provision be or be not
made for its relief.

Whatever
you think about the worth of imprisoning felons on the wholesale basis
California has since the early 1980s, whether you consider yourself
"tough on crime," or a "bleeding heart, blame it all on society" type,
if you live in California you ought to be pissed off at the atrocious
prisons the state built in the intervening decades. In the name of
housing prisoners as fast and as cheaply as possible, we built prisons
that are impractical and dysfunctional, and which may now require
billions to be spent in medical upgrades.
It was common sense
more than two hundred years ago already, that if you are going to put
people in a prison you need to plan for three things.

1. Provide safe custody

2.
Provide a place for labor (or perhaps learning) to keep the prisoners
peaceful if not productively contributing to their upkeep.

3.
Provide medical care for a population that whether from self abuse or
poverty (or both) is always a lot sicker then the general population.

These
simple truths guided prison design across the globe until California's
leadership committed itself to a reckless policy of warehousing its
felon population as fast as possible in state prisons designed for
nothing but maximizing custody capacity. The resulting prisons are not
safe, cannot provide labor or any other kind of programming on a
regular basis to most of their inmates, and are now famously incapable
of delivering constitutionally adequate health care to its incarcerated
population.

The next Governor of California will have a good
basis for washing his or her hands of this mess. Jerry Brown was the
last Governor to preside over a pre-mass incarceration prison system,
one that functioned well at a comparative pittance. Meg Whitman and
Steve Poizner come from the private sector and can claim (I hope) to
have never signed off on such stupid investments as California's prison
building boom of the 1980s and 1990s. Whoever is elected should take
three first steps.

1. Repudiate mass incarceration and honestly
explain to the public that as presently constituted, California's
prisons are a poor investment in public safety and an unsustainable
burden on our fiscal condition.

2. Cease appealing the
Plata/Coleman 3-Judge order to reduce CDCR's population by at least
40,000 inmates in two years and announce that your administration will
seek to push reductions even further by redirecting non-violent felons
and parole violators to probation and where necessary, county jails,
all of which will be supported by state funds currently spent on
prisons.

3. Plan to close at least 10 of the worst designed and
situated prisons completely within five years. The remaining prisons
should be those best capable of meeting Bentham's 3 minimum
requirements. This should allow the state to avoid any major
investments in new prison hospitals and dramatically cut the prison
share of the budget. While a major portion of the savings should be
redirected to counties to pay for additional probation and police
officers, savings should if possible go to higher education and to
meeting the health care needs of California's non-incarcerated
population.

Friday, January 22, 2010

Bail and Punishment: Many Behind Bars Have Been Convicted of Nothing

Most Americans believe that if you are behind bars somewhere it is
because you committed a crime. Kudos to NPR's Laura Sullivan for
setting the record straight with her stunning multi-part story
on bail and jail in America. Bottom line, thousands of Americans
languish in jails accused of petty crimes but unable to meet usurious
bond fees set by bondsmen (an ominous if old fashioned term for an
industry comparable to the payday loan business) while in aggregate,
local and state governments spend 9 billion dollars a year housing
people who pose little threat and who have not been convicted by anyone
but a police officer thus far. In today's piece, Sullivan's interviews
with Shadu Green, a New York City resident arrested for being
belligerent to the police, underscore how this invisible system of
control processes many new convictions by forcing the arrested to
choose between languishing in jail for months, or accepting a guilty
plea that may get them out sooner.

While Sullivan emphasized
the role of bail bond companies in lobbying local government to keep
the current money bail system in place, this all too familiar circuit
of enterprises exploiting the poor with the help of government needs to
be seen in the context of the broader structure of fear based governing through crime.
While bail bond enterprises may well be effective at buying cooperation
from judges and county administrators, it is hard to understand why
state legislatures, who control the ultimate statutory levers, would
choose to leave millions on the table for benefit of local businesses.
Like correctional officers and prison construction companies, self
interested politics works because of a structure of beliefs about those
arrested and processed by our criminal justice system that has become
part of what sociologist David Garland would call the "common sense" of
high crime societies (in the book, The Culture of Control).

1.
Most people arrested by the police are criminals who are guilty of
something (whether or not clever defense lawyers are able to get them
off on technicalities).

2. The courts routinely let dangerous criminals out almost immediately, rendering the work of police largely futile.

3.
While on the streets, these unconvicted criminals return to committing
crimes, perhaps a faster clip to earn enough to pay off their defense
lawyers.

4. No one in the community is hurt by the absence of these presumptive "predators".

As Sullivan's reporting shows, all of these assumptions are questionable.

Thursday, January 21, 2010

After the Health Reform Crack Up: Govern through crime?

Former Clinton adviser Mark Penn
lays out the case for a Bill Clinton post-1994 model for Obama to come
back to the "center" and "swing voters" after the apparent crack up of
his signature health reform initiative. Whatever the politics of swing
v. base voters going into, rather than coming out of, a mid-term
congressional election (which may be important) it is also worth
remembering that what Clinton did in that period was to help enact some
of the worst pieces of crime legislation in the history of democratic
societies including a host of new federal death penalties, the Anti-terrorism and Effective Death Penalty Act of 1996, the Prison Litigation Reform Act,
and many other laws that helped the states achieve unprecedented prison
populations during an era when crime was already declining.

Fortunately the public is not as primed for a crime centered populist swing as it was in 1994 with the murder of Polly Klass
driving the media. Still, it is hard to see where, other than in
punishing despised criminals, the two parties can agree on strong
sounding laws. In that spirit, and tongue only partially in cheek, look
for the some of the following to take up all the extra time the Senate
will have on its hands after health reform is off the table:

A
federal death penalty for insurance executives whose decisions can be
shown to have shortened the life of an insured (now that's a "death
panel" baby).

LWOP for Bank executives who short their own client's position.

Lifetime Sex offender registration and notification requirements for
public office holders who commit adultery while in the District of
Columbia.

Monday, January 18, 2010

The Paradox of Security in Disasters: Suffering, Looting and Delay in Haiti

As the days have passed since the devastating earth quake struck in
Haiti a week ago tomorrow, two themes have dominated the media
coverage: when will water and food reach the struggling survivors in
the streets of Port au Prince and when will the violence start. I'm
worried, and I hope I'm wrong, that our national obsession with crime
as the number one threat (which we have spread to much of the rest of the
world) is bringing these two themes together. Is the slow pace of aid
being driven in part by the the priority that security is receiving?

I am not reassured by the quotes coming from American military personnel on NPR's Morning Edition
today, questionable homilies about how law and order is the necessary
prerequisite for all other aid. Is that right? The people of Haiti seem
to have done a pretty amazing job remaining calm and dignified in the
face of unbelievable suffering and death (generally demoralizing forces
one would assume). The only violence reported in this morning's reporting
by Damien Cave and Deborah Sontag in the New York Times, involved the
summary execution of looters by Haitian police. Perhaps unchecked
looting would lead to ever more violence, but the long delays in
getting water to people has surely added to the potential for disorder
when supplies finally reach the desperate.

I trust the
military's own disaster specialists more than I do the US media which
has been expectantly waiting for outbreaks of violence since the day
after the quake. As we saw in the coverage of Hurricane Katrina and New Orleans, the US media looks for a crime story first; especially when a
national drama is playing out in an urban area and when the
protagonists have dark skin. In that case, a city's remarkable dignity
and courage were obliterated in a near "white-out" of mostly false
crime reports. Hopefully that will not happen again. Hopefully, the aid
workers and the military's logisticians are listening to the reports
from the ground and not the cloud of crime expectation.

Saturday, January 09, 2010

Governor True Lies

The biggest disappointment in my six years back in California has a
name, Arnold Schwarzenegger. When he rousted Gray Davis in the recall I
was amused (Davis was as stalwart a supporter of the penal state in
California as it ever had, I was glad to see him go). When he settled
prison lawsuits, called the parole system broken, said we had to stop
warehousing people, and renamed the prison system the Department of
Corrections and Rehabilitation, I got excited. With California's epic
prison condition lawsuit bearing down on the state, and a governor who
understood that mass incarceration was hurting the state, a major shift
seemed to be in the offing. Smaller turns have happened in states like
Michigan, New York, and even Texas. May be, with an action hero at its
helm, my Golden state was about to do an even bigger one.

Six
years later we have a prison system that is marginally smaller (crime
is down as well) but even more expensive, just as ineffective at
delivering rehabilitation, and with no solution in sight. Instead of
working with the courts, the governator has gone for every rhetorical
anti-federal court trope in the Jim Crow
play book. Still, sucker for rhetoric that I am, I was stirred by his
final state of the state address in which he called for a
constitutional amendment to place prison spending under higher
education spending. As I noted in my previous post,
the premise behind this promise, that prison costs could be reduced
rather than prison populations shrunk, was flawed, but the vision was
the right one for beginning a public conversation about the state's
priorities.

Now comes his proposed budget. Maybe all such
documents are political, but that doesn't mean they are phony. If its
prison spending provision is any clue, this one is phony through and
through (read the analysis
by Wyatt Buchanan and Marisa Lagos in the SFChron). The Governor
promises a $1.2 Billion dollar cut in prison spending, but $811 million
of that comes out of prison health care spending directed by the
federal court's receiver in the Plata
case, a cut that the federal court could simply reverse if it ever had
to (and remember the court orders on health conditions stand whether or
not the current population cap is overturned).

In a year
Arnold Schwarzenegger will be gone (he won't have to move since he
never left Venice Beach). He will almost certainly be replaced by
someone with just as little commitment to fixing our toxic
incarceration problem, but probably not one that will make big phony
promises to fix it and in this mean season, for me at least, that is an
improvement.

Wednesday, January 06, 2010

Schwarzenegger Calls for Prioritizing Higher Ed over Prisons in the State Constititution/9th Circuit Strikes down Washington's Felon Disenfranchisement Law

Governor Arnold Schwarzenegger used his annual state of the state address to call for a constitutional amendment to guarantee that at least 10 percent of the state's general fund revenues go for higher education, while prison expenditures are limited to 7 percent. [read his press release]. The Governor stated that expenditures had traditionally been 10 percent for higher education and 3 percent for corrections (actually it was nearly 20 percent when I was a student here). Noting that this year corrections received more money than higher education, the Governor is calling for an amendment that will fix the ratio beginning in 2014.

The proposal is bold and deserves support (although adding yet more layers to our Rube Goldberg state constitution is a problem in its own right). Unfortunately, the Governor seems to envision that this will be achieved by reducing spending on prisoners, not by reducing prisoners. His proposal would also allow the California Department of Corrections and Rehabilitation to contract out to private suppliers for prisons and prison services.

In another important development related to criminal justice, a panel of the 9th circuit held Washington state's automatic felon disenfranchisement law violates the Voting Rights Act (Section 2) because the criminal justice system in the state is "infected with bias" that cannot be explained on race neutral grounds. [read the opinion here Download 06-35669]. In perhaps the biggest surprise, the court's ruling applies to felons still in prison (the state had already revised the law to lead to presumptive restoration of rights to those finishing their sentences). I will leave it to others who know the VRA jurisprudence to comment on the panel's reasoning. The most exciting aspect from my perspective is that the court cited empirical work by criminologists Robert Crutchfield and Katherine Beckett for its conclusion that Washington's criminal justice system was racially biased. Crutchfield's report was apparently based on analysis of arrest and sentencing data (Blacks are 4 times more likely to be arrested for a violent crime, but 9 times more likely to go to prison). Beckett's research showed that drug arrests focus on crack, outdoor dealing, and downtown drug use, all factors that lead to a disproportionate impact on minorities. Whatever happens to the VRA aspects of this case, it is hard to believe that this data will not be used to challenge other aspects of Washington's criminal justice system.

Wednesday, December 30, 2009

Crime Decline Conundrum

With aviation terrorism and a still lackluster employment market
dominating year end headlines, the one piece of good news appears to be
a fairly widespread decline in homicides in major cities. New York, as
trumpeted in yesterday's NYtimes (read Al Baker's reporting)
had a year with fewer homicides than any year since 1963 (essentially
before the modern crime wave was evident). San Francisco also reported
a record drop (read Jaxon Van Derbenken's article
in the SFChron) to as low as the city has seen since 1961 (take that
New York), and after a series of rather violent years in the middle of
this decade. Chicago and LA have also reported declines this year.
Providence, was one of the few cities reporting a homicide "spike,"
with the addition of two dead this week in a drug raid that also left
three police officers wounded (read W. Zachary Malinowski's reporting in the Providence Journal). This is good news in a year with little of it.

The
journalistic lead is that this is happening despite a severe recession
(the man bites dog angle). Whatever the intuitive appeal to the notion
that bad times generate crime, few criminologists believe it is a clean
relationship. In many respects, times are always bad in those
communities that experience the highest levels of crimes like homicide,
aggravated assault, and robbery. This, not surprisingly, does not stop
police chiefs and mayors from claiming credit (at least if they've been
on the job for more than six months) whatever the hazard that their
policies might be blamed when crime begins its inexorable return (like
most gambles, it probably makes sense in the short term context of
political survival). But even criminologists, this one included, are
not immune from believing that, combined with the substantial crime
declines of the 1990s, and the relative stability of crime through most
of this decade, this end of decade crime decline could mark a longer
term shift away from the pattern of high levels of gun violence
concentrated in cities that has defined urban life for the much of the
past forty years. What would drive such change? Here is a New Year's
speculation list of the top three "positive" factors underlying
declines in urban violence.

May they all continue in 2010!

1.
Bottoming out of the de-industrialization of American cities that began
in 1946 and continued through the 1980s. Even if new economic engines
of prosperity have not exactly re-emerged in many cities, the process
of losing existing assets has run its course.

Monday, December 14, 2009

The Meaning of Life

Carol Williams reporting in the LATimes does a superb job of describing California's Lewis Carroll like parole system for those sentenced to life in prison for murder, with the possibility of parole; a topic which has given the California Supreme Court cause for psycho-therapy and now looms over the 9th Circuit (Hayward v. Marshall, 527 F.3d 797, granting rehearing en banc over the earlier panel opinion granting habeas corpus to lifer Hayward, 512 F.3d 536). The issue, however, makes a great way to teach core issues in substantive criminal law including the distinctions between rehabilitation, deterrence, incapacitation, and retribution, and the elements of the law of murder and manslaughter. Unlike the typical casebook murder case, these parole based cases involve core examples of murder. Moreoever, the posture of these cases is particularly good for teaching as they raise the question of whether given the facts of the crime, criminal record, and record of prison discipline and rehabilitation, some evidence exists that the petitioner convicted of murder poses an "unreasonable risk" to public safety. This contrasts with the much more limited facts available to the typical appellate murder case. The problem is that between the due process issues, and the statutory construction issues, and the two levels of administrative decision making (parole board, and governor), with trials courts added in, plus ATEDPA if its federal court, it is kind of hard to teach. Thus you might consider just using William's article and the facts of Hayward (more beneath the fold) for your discussion.

Hayward killed a man at the legal boundaries between murder and manslaughter (he confronted the man he believed had insulted/assaulted and possibly raped his girlfriend, and stabbed him to death during the resulting fight) and was convicted of 2nd degree murder. The law under which he was sentenced made him eligible for parole after 15 years. Indeed, the language of the law is that the board "shall" set a date (atlthough it might be years in the future) for release unless they find the subject "unsuitable" for parole. Hayward became the model prisoner, pursuing therapy, education, and becoming a positive influence on those around him. Now 67, he has job offers and a clear plan of where to live if he should be released (quite different for many). While in an earlier era his parole would have been routine, by the 1990s parole boards in California became increasingly sensitive to victim advocates and focused on the details of the crime rather than the prison profile. Governors assuming an old statutory mandate (reinforced constitutionally in 1988) began to review every parole decision, reversing almost all of the very few granted by the parole board. Since 2003 this log jam has produced an increasing number of legal challenges through the arduous process of habeas corpus petitions to the superior court where the prison sits, and eventually to the California Supreme Court, and on to the federal courts (where dreaded ATEDPA issues rear their heads).

In 2002, at his 10th parole hearing, the board granted Hayward a parole date. Since then Hayward has been repeatedly turned down by California governors. Although the law only requires "some evidence" of unreasonable risk, the 9th circuit panel opinion makes a strong case that the governor's rationale lacks any. The panel found that the trial courts must consider whether "some evidence" exists of unreasonable dangerousness, not just whether some evidence exists to support the reasons the governor cites for believing the subject to pose and unreasonable risk. The en banc decision (and possible Supreme Court decision to follow) could result in a system in which the governor would have virtually unquestionable authority to keep convicted murderers in prison until death. Fear of this kind of outcome has led the European Court of Human Rights to find that life sentences with parole must permit an official completely insulated from politics, like a court, to determine parole release dates.

Tuesday, December 08, 2009

Death Be Not Proud

In the aftermath of Ohio's latest execution (read Ian Urbina's reporting in the NYTimes; this one was the first to be done with a single shot of a powerful narcotic ), I was cheered to read my colleague (and teacher) Frank Zimring's column in yesterday's National Law Journal, noting the decision by the American Law Institute earlier this fall, to withdraw it's much cited standards for capital sentencing. Zimring, who longed championed the cause of repealing these provisions, points to an irony that should haunt all of us who purport to advise governments on matters of law and human rights. The standards, captured in Section 210.6 of the Model Penal Code, were a compromise produced by reporters very much opposed to the death penalty, but drafted by the late Herbert Wechsler (who as Zimring notes, was no friend of capital punishment) because the code was intended as a comprehensive document for state criminal law reform, and most states continued to have the death penalty. Yet when the states began to reconstruct capital statutes in the aftermath of Furman v. Georgia (1972), many readily adopted the MPC provision, with its apparent structures to control discretion, making this least cherished artifact of the great drafter, one of the most widely adopted "reforms" in the MPC.

Substantively, the section's weaknesses, diagnosed by Zimring and others as anchored in the overbroad categories included in the aggravating factors, overwhelmed any good it might have done in limiting the power of either prosecutors or jurors. In the subsequent decades, the states have frequently cluttered the relatively lean list of MPC factors, with dozens of populist provisions designed to "honor" certain categories of victims. The ALI's decision may be little celebrated in the media, nor noted by voters, but it is one step toward stripping the death penalty of the pretense it retains of legality. The eventual abolition of capital punishment in this country, will come, I suspect, not when Americans are convinced it is morally wrong, or empirically unsound, but when they can no longer recognize it as law. That day is perhaps not soon, but closer.

Thursday, December 03, 2009

Pre Crime: Why are we so confident that we can prevent acts of terrible violence?

As politicians and officials in Washington (state) and Arkansas battle over who should have stopped Maurice Clemmons before he apparently shot to death four Washington state police officers outside a strip mall coffee shop near Tacoma last weekend before being shot dead by Seattle police, we can observe a very enduring if not endearing American obsession-- our conviction that we might have stopped the tragedy (read William Yardley's summary of the blame game in the NYTimes). Clemmons, sent to prison with a hundred year plus term for violent crimes as a teenager, received clemency and parole from then Arkansas governor Mike Huckabee (who made no secret of his religious belief in the possibility of redemption and change). Both Washington State and Arkansas officials appear to have missed opportunities (in retrospect) to turn up the control pressure on Clemmons. More should be learned over the next news cycle or two.

As an overall trait, this American confidence that better technique and method could stop violence is largely admirable, small "d" democratic, and great for the criminal law and policy reform business (which includes fairly or not, academics). Overall it may make us prone to waves of generally temporary civil liberties destruction in the name of personal security (as we have seen). My objection, however, is limited to two points.

First, our obsession with the "recidivist". Once we have sent someone to prison it seems maddening to Americans that we cannot guarantee they will remain tame forever after. This leads us to keep too many people in prison, for too long (something that this and other recent crimes will only stroke); blind to the fact that the odds of any particular ex-prisoner committing a violent crime are scarcely, if at all, measurably different from other non ex-prisoners with similar demographic circumstances. Ironically, the one trait that really may help us track future violence--evidence of major mental illness combined with acts of violence--seems to be largely ignored by our criminal justice system (which accords it little measure of mercy or forewarning).

Second, Americans eschew as "welfare" those things that could most efficiently relieve the most predictable violence (such as substantial economic assistance to victims of domestic violence to escape their threatening partners or efforts to embed high-risk teenagers in cuddly but secure extended school programming).

Tuesday, December 01, 2009

Architecture of Justice: Ideology in Stone?

I'm almost recovered from the physical consequences of a quick Thanksgiving weekend trip to Lincolnshire, England, where I attended a conference on the Architecture of Justice organized by Professor Nicholas Temple of Lincoln University, School of Architecture, and and Professor Renee Tobe of the University of East London, School of Architecture and the Visual Arts. Having dinner in the priory of Lincoln Cathedral (a stunning medieval construction, the third largest in the UK) and standing in the positively panoptic chapel of the 19th century Victorian prison that still stands in the middle of a fortress and castle (itself begun by the Conqueror, two years afte the Battle of Hastings) would have made the jetlag worth it. However the intellectual rewards of breaking outside my usual discourse silos were even greater. I have attended conferences or given talks in the UK many times over the past few years without once breaking out of the silos of criminology and law (I still learn a great deal being outside the US). With some four keynotes and some eighteen parallel sessions, there was more than I can hope to summarize in several posts. One theme that was emerged again and again was the relationship between built structures of justice, especially courts, and the spatial relationships of cruelty and oppression that at times the architecture of justice seems intended to "cover up," and at other times to "exorcise."

One very clearly ideological exercise from the 19th century was documented in the photos presented by Jonathan Charley, of the University of Strathclyde, in his brilliant historical and archtectural tour of the sites of oppression and justice, "Violent Stone: The City of Dialectical Justice." Cities like Birmingham in England, and Brussels in Belgium in the 19th century, constructed grandiouse edificies of justice to house their central trial courts, right at the moment they were enjoying the most rapid enrichment from their highly specific exploitation of the slave trade and King Leopold's own version of slavery/genocide in the Congo respectively.

Whether or not one stands with E. P. Thompson, to recognize the dialectical potential for the law to ultimately temper the exploitation of the powerful, it is hard not to recognize the bald effort at legitimation involved in buildings like the Palais de Justice.

On the otherhand, what about the recent efforts to build new courthouses that represent the aspiration to transparency of contemporary English courts with sweeping atriums of glass like the brand new Manchester Civil Justice Centre (whose principal architect, Stephen Quinlan, presented a plenary address)? Or perhaps, most intriguingly of all, the new Constitutional Court in Johannesburg, South Africa, built directly across from a fortress prison where victims of Apartheid were incarcerated and sometimes executed on a hill at the margins of the city?

Friday, November 20, 2009

Hope v. Fear

Could there be any better index of the relative strength of hope and fear in a polity than spending on universities and prisons? For the American "states", who have no armies, universities and prisons are the most concentrated and material manifestations of state sovereignty itself (other than the cluster of buildings that stand in their capitals, usually ignored by the public). In California fear had an early lead as San Quentin prison opened in 1851, just two years after statehood, and well ahead of the University of California which was chartered in 1868.

Both grew slowly over the next century, with a new prison at Folsom opened in 1880, and a southern branch of the University of California opened in Los Angeles in 1914. The second half of the 20th century saw a surge of hope after World War II that reached its peak in 1960 with California's famed "master plan." The University of California, projected to expand to nine campuses, would become the research arm of a comprehensive public university and college system guaranteeing nearly free four year higher education to the vast majority of the state's high school graduates. The spending unleashed by this hope was just cresting as I reached the gleaming Berkeley campus as a freshman in 1977. At that point, the state spent more than 17 percent of its discretionary fund on higher education, and 3 percent on prisons and parole. Fear was already building a head of steam with the crime wave of the 1960s and 1970s. Over the next three decades the state built more than 20 new prisons and a total of 3 four-year universities. The fact that California is, in good times, extraordinarily wealthy, made it possible to sustain a lot of fear and hope. But the recent financial crisis has made that impossible. California must now choose fear or hope for the future. Today prison leads spending on higher education with pressure on both. Tamar Lewin's front page article in today's NYTimes chronicles the recent travails of the University of California as fear shows its staying power and hope wilts.

Unfortunately, the recent days of protest at Berkeley and Los Angeles (the regents are meeting in the latter) have failed to focus on this choice and instead lashed out at the University's own administration for making the cuts and tuition increases necessary to survive. (for my critique of the strikers)

Wednesday, November 18, 2009

Virtually everyone who studies prison agrees that states currently incarcerate too many people, too indiscriminately, and generally for too long. California is the poster child for this problem, with huge budget deficits and federal court orders to both reduce its prison population and improve the quality of medical care in its prisons. But just when the fiscal and legal problems of the state seem to open the policy window for a discussion of reforming the system, a series of crimes come to public attention that remind everyone of the chief boogeyman that has haunted American justice at least since the end of the 19th century, the violent criminal who keeps coming out of prison and committing more crimes.

Over the summer there was the arrest of sex offender Philip Garrido, who had kept kidnap victim Jaycee Dugard for 19 years in his Antioch home despite being on parole and registered as a sex offender (read Maura Dolan's coverage of the case in the LATimes). Last month a Cleveland man with record of rape convictions was found in his home along with the corpses of some ten victims (WKYC.Com's coverage). Now comes Curtis Martin III (38), charged in Alameda County Superior Court yesterday with two counts of murder and special circumstances (making him eligible for the death penalty) for the murder of a 23 year old woman and her 17 month old son, Martin went to prison back in the 1990s for killing the three year old son of his girlfriend (read Henry Lee's coverage in the SFChron). To the casual reader all of these stories suggest men who received remarkably light sentences for past serious crimes (Martin served six years on an eleven year sentence for manslaughter; Garrido did less than ten on a federal kidnapping conviction), and who emerged from prison ready and willing to commit similar or worst crimes. If a lot of offenders are like Garrido and Martin, mass incarceration might seem a very sensible strategy indeed. The result may well be renewed calls for longer sentences, despite the obvious prison crisis we are having.

The public is less likely to notice several features of all of these cases. First, the seemingly lenient sentences that all three men received reflect sentencing laws from decades ago and in Martin's case, apparent proof problems that led to a manslaughter rather than murder charge. Two of the three were on parole supervision but undeterred from continuing to commit crimes. Finally, in all three cases, the suspects were detected by good police work (sometimes after repeated failures by other police agencies).

The last thing we need is a spate of longer sentences targetted generically at whole categories of offenders. Mass incarceration creates the conditions under which willful offenders like all three of these recent cases can operate with impunity, their violent crimes largely hidden amidst the blizzard of minor violations that dominate parole supervision. It also creates conditions under which young women like Zoelina Williams (23), whose body was found in Aquatic Park here in Berkeley (where my kids often play) get involved with older losers like Curtis Martin (see the forthcoming article by my collegues, Stephen Raphael and Rucker Howard on the effects of incarceration on AIDS infection rates).

The silver lining in all these cases is what they reveal about the effectiveness of good police work. In the Garrido case, a UC Berkeley police officer, maintaining public observance of a widely used public forum (Sather Gate), noticed the aberrant appearance and behavior of Garrido's daughters (with his kidnap victim). Curtis Martin was caught because an officer of the Berkeley police department ran into him on foot patrol in Acquatic Park, and noted down his name and license plate, facts that led to his arrest less than eight hours after the body was discovered. As my colleague Justin McCrary has shown, public spending on prisons has outstripped police by an overwhelming amount since the 1970s (400 percent increase of prisons, more like 20 percent for police).

Tuesday, November 10, 2009

Help Wanted: Clearing the Troubled Assets of the Penal State

I had to miss a criminal law careers panel at Berkeley Law today due to the ongoing influenza epidemic known as my home. The panel had the intriguing title "Careers in Criminal Law: Beyond Defense & Prosecution." I wanted to share a rough outline of what I would have said. The prison crisis in states like California, and the ongoing over-investment of social resources toward mass incarceration in America that they show case, is one of the reasons it is so important to as what lies beyond the traditional careers in criminal law defense and prosecution. For while the large urban public defender and district attorneys offices have been a mainstay of employment for graduates of American law schools since the war on crime began in the late '60s, the long war may be winding down(at least in growth terms). But this does not necessarily mean the need for fewer lawyers, but perhaps different kinds of lawyering. For while defenders as much as prosecutors have made their bread by helping to manage the processing of citizens into prisoners, the present/future offers lots of opportunities for those lawyers who can figure out how to reverse the process.

The present fiscal and legal crises around prison populations is making it easier then ever to monetize gains from reducing the enormous "legacy" costs that now afflict the state from their commitments to warehousing large categories of criminal offenders, with little built in capacity to assess risk and reduce the overincarceration of the undangerous. Because a great many of these arise not simply from criminal opportunities but from the operation of an extended system of governing through crime that runs well beyond the criminal law system into areas as diverse as mental health law, education law, and employment law, lawyers have real advantages in this emerging market (especially if they have, or can partner with people who have criminological skills, therapuetic skills, empirical skills, etc.

I'm not saying these jobs are waiting in a binder in the career center. Mostly they will have to be invented, one law graduate at a time, perhaps with some help from foundations and law schools. Here are a few general areas where there is lots of action:

Justice Reinvestment: Once you track how much money the state is spending incarcerating the troubled population of certain extremely disadvantaged neighborhoods (and in every state there are a few such neighborhoods that account for a grotesque portion of the whole carceral population) you can calculate how much the state is spending to incarcerate their way to public safety and order in those neighborhoods. Sociologists have come to recognize and document that these areas are almost invariably denuded of non-criminal sources of social order making, and have few resources to address the predictable demand for mental health, drug treatment, job training, and housing assistance in that neighborhood. Finding ways to frontload the investment in such non-criminal social
control, while capturing the gains from reductions in incarceration
costs that will follow successful implementation is the key. The heavy
role of medical costs in driving carceral expenditures may be very
important here, especially if Congress manages to create a wider
entitlement to health care for Americans in poverty.

Parolees and Recidivism: The low lying fruit here, at least in states like California, are parolees whose path back to prison is generally a greased slide, and for whom the social value of incarceraiton is almost certainly a bad deal all around. The excellent settlement of the Valdivia case here in California (now under attack again) provides one clear example. By giving every parolee under revocation a lawyer (rather than undertaking costly screening) and organizing the calendaring for efficiency, the Valdivia consent decree created a market where lawyers can make a living reducing the flow of parolees back to prison, helping the state reduce its population and almost certainly saving money. We need more creative uses of litigation to create more effective lawyer roles in the parole process. The time is ripe for something similar for lifers in prison who are costing the state money as they age and, and in many cases, posing next zero risk to public safety.

Schools to Jail: Research by sociologist Bruce Western and his collaborators documents that youg minority males who do not finish high school experience witheringly high rates of imprisonment by the time they are 30 (close to 2/3rds). Can lawyers find ways to keep minority males in school? Since school discipline and aggressive policing, as well as gang activity itself, are all factors driving such kids out of school, lawyers would seem to have lots of ways of intervening (getting paid, not so obvious).

Mental Health: Huge numbers of people move in and out of jail and prison because we have foreswarn the traditional practices of confining the untreated mentally ill, but have failed to generate effective community alternatives. Finding some way to reinvent our civil governance of the mentally ill will need lots of lawyering (lots of doctoring too no doubt).

Reinventing public defender and district attorney offices: Prosecutors have huge opportunities to rationalize social costs by being more selective in deciding who qualifies for a sentence in the "big house" as opposed to lower cost alternatives like fines, probation, and jail. In exercising more judgment, they need defenders who can make a case pre-trial for their client's "good" risk profile and "promising" non-prison plan, as much as they might focus on weaknesses in the evidence or police conduct. Innovators in traditional defender and prosecutor offices can also play a key role in addressing all the issues above.

Friday, October 30, 2009

Is the death penalty a specific incentive to murder? The strange case of Billy Joe Johnson

Billy Joe Johnson got his express wish yesterday, an Orange County jury sentenced him to death (reported in the AP on SFChron website). The twist is this, Johnson is already serving a forty year to life sentence in California's harsh Pelican Bay prison. Johnson, a loyal member of a white supremacist prison gang, who sports twin lighting bolt tattoos on his neck (in a fashion once associated with the SS) has been candid that the murder was one of several ordered from prison for the specific purpose of earning Johnson a transfer to San Quentin's death row.

Is Johnson's story credible? Prosecutors played in court taped statements of Johnson in which, clearly aware that he is being wire tapped, seems to speak directly to his future jurors (from R. Scott Moxeley's reporting in the Orange County News) :

“He ain’t done yet. He’s gonna kill again—oh, man!”

Why?

“I’m a motherfucking, bona-fide, certified, fucking nut fucking
case, and if they don’t like it, they can fuck off,” said Johnson, who
speaks with a lisp. “You know what I mean? Put that on the fucking
front page, you know what I mean? Nut case. Fucking don’t care.”

Does trading life sentence in one of the state's "secured housing units", i.e., supermax prisons, for a cell on San Quentin's death row make sense? Frighteningly, yes. Execution is unlikely for at least 20 years (Johnson is already 46 and has spent much of his life in prison). Death row prisoners get much more lawyer attention and may have better physical conditions. San Quentin is a prison with far more educational and cultural resources than most California prisons (although death row inmates have little direct access to either).

Perhaps the better question is whether Orange County prosecutors and death qualified jurors are so high on vengeance fumes that they are being manipulated by hardened felon in a gambit that will cost the state millions in court costs over the life of the course of appeals, without gaining one wit of security.

Monday, October 19, 2009

Who Killed Kennedy? Memories of a Unique Class and Teacher

Scott Shane's story in last Saturday's NYTimes on the CIA's continuing resistance to disclosing its files on its relationship with anti-Castro Cuban militant groups, including some who clashed with Lee Harvey Oswald on the streets of New Orleans in the summer before the assassination, brought to mind my happy days in Miami and a remarkable class at UM Law taught be my friend, the late John Hart Ely. Ely, who became a giant of constitutional scholarship, was as a young man was summoned by Chief Justice Warren (for whom he was about to clerk) to serve as staff for the Warren Commission. Ely spent years defending the Commission's results by the late 1990s he had come to the conclusion that history had shown the Commission's sources to be deeply and deliberately truncated. He doubted that any of the more sweeping conspiracy theories were credible, but he had come to conclude that someone, Castro perhaps, or a mob boss, had indeed played a role in setting Oswald in motion. To satisfy himself, if not history, John organized a seminar on the topic of who killed JFK? at the University of Miami Law School in or around 2000. Along with a handful of curious students and very distinguished lawyer and friend of John's (whose name is eluding me this morning), I took the class.

The University of Miami, where I served on the faculty for 11 years and
John for almost as long before his untimely death in 2003, was the
chief location of the CIA's largest field station in the 1960s and
1970s, code named JMWave. It was easy walking amidst the tropical garden like grounds of the campus on hot humid nights to imagine all sorts of plots. John rejected the theory that the CIA itself had killed Kennedy (let alone a vast military industrial conspiracy along the lines of Oliver Stone's JFK). Because Kennedy had clearly tried to kill Castro, John found it plausible that Castro might have decided to turn tables. John may have been influenced in this perspective by his wife, Gisela Cardonne Ely, a Cuban American jurist in Miami of great intellectual force.

My own views, ran along the lines of the conspiracy sketched by novelist Don Dellilo in Libra, a plot among a small group of anti-Castro militants and their low level CIA handlers. These folks, like Castro, had personal reasons for revenge against the handsome young President. They had seen scores of their brothers and colleagues lost during the failed Bay of Pigs invasion which many blamed on Kennedy's decision to withhold American air support, and which the President himself accepted blame for. Unlike Castro or the mob, they were a loose and informal network of actors who presented no major target for backlash.

It is very unlikely, in my view, that the top leadership of the CIA would have agreed to this conspiracy. Indeed, they would have lacked all the emotional heat about the matter that murder requires, and probably highly identified with the dashing young President who shared their belief in a James Bond like war against Communism. However, and this brings us back to Shane's story, it is plausible that the CIA's top management would have conspired to cover up their relationship with the individual or individuals who belonged to the conspiracy and their failure to terminate this treasonous plot, (a motivation that could be shared even by their current leaders). I did get John to agree to that plausibility, but he did not find it convincing.

Does Kennedy's assassination deserve a place in law school curriculum's? Perhaps not as a regular offering, but courses that use legal skills and materials to investigate pivotal moments of history might indeed have an important intellectual and even pedagogic role to play.

Tuesday, October 13, 2009

School crime prevention strategies show the difference between governing crime and governing through crime

Two excellent recent features in the NYTimes show case the subtle but important difference between what I call "governing crime," serious efforts to address real crime risks within one's actual domain, and "governing through crime," what amount to, at best, reactive responses to fear of crime that have little actual purchase on the actual risks within one's domain. Last week Susan Saulny reported on the innovative new strategy being deployed by new Chicago public school's chief Ron Huberman (himself a former cop as well as transit official). Violence is a real threat in at least some Chicago schools, with three deaths this year and over 500 shootings in the past several. In response, Huberman is reversing the usual focus on excluionary and punitive responses to those at risk of violent behavior, and instead focusing on the 10,000 students most at risk of being victims of violence (they turn out to be largely the same people anyway), targetting them with programming to keep them in school and less exposed to violence. In Sunday's Times, Ian Urbina reported on the bizarre and sensless "zero tolerance" regime that has flourished in schools across the country in response to Columbine and other spectacular but episodic incidents of school violence.

Friday, October 09, 2009

California's epic prison mess is heading back into court with the inmate plaintiff's asking the three judge panel to enforce their historic August 4th call for a reduction of some 40,000 inmates over two years with a contempt order against Governor Schwarzenegger. As Denny Walsh reports in the Sac Bee:

Saying the Schwarzenegger administration is thumbing its nose at three federal judges with a flawed plan to ease overpopulation of prisons, inmates'
attorneys Thursday asked the judges to find the governor in contempt.

Rather than complying with the three-judge panel's Aug. 4 order, a defiant Gov. Arnold Schwarzenegger and Corrections Secretary Matt Cate "essentially have told the court that they will reduce the state prison population
as the state sees fit, to a level the state deems appropriate, and in a
time frame the state has set for itself," the attorneys wrote.

The Governor whose low approval ratings and general fatigue at governing may have already peaked with his less than cordial greeting at a San Francisco Democratic Party event (the Guv was invited to "kiss my Gay ass" by Tom Amiano, read Carla Maranucci's reporting in the SF Chron), may rightly feel that he has tried to comply since his own plan was amended by the Democratic controlled legislature which backed off many of the cuts and the promise of a sentencing commission. But if Arnold wants to go out as an action hero he can still lead. As governor he can stop denying parole to scores of California lifers who have served decades and demonstrated substantial rehabilitation. He can order, as Ronald Reagan did, parole units to stop returning parolees to prison for minor violations of parole. With these steps alone he could bring the system into compliance before leaving office.

If, as seems increasingly likely, this whole case ends up in the Supreme Court sooner than later, look for several interesting legal flash points:

The three judge court in Plata and Coleman has suggested that the Prison Litigation Reform Act of 1995 (signed into law by Bill Clinton 13 years ago this month) need not be a barrier to court based structural reform of prison systems including prisoner release. The three judge panel, in my view, has put together an awesome record that will be hard for the Supreme Court to override, but look for Justice Alito in particular to focus on the federalism, public safety, and democratic accountability concerns embedded in the strong anti judicial intervention language of PLRA

I just taught the Supreme Court's 2005 Samson v. California case in which the power under California law to search all parolees without any suspicion by all peace officers (both parole and police) was upheld against a 4th Amendment challenge. The very complex case, which throws a lot of 4th Amendment doctrine into doubt, turns heavily on a bizarre (and in my view grossly incorrect) understanding of the same California parole revocation mess that will be at the center of a Plata Coleman decision. I will post more on this theme, but main point is that the Supreme Court in Samson took California's high revocation rate to prove that parolees were so dangerous they needed to be exempted from 4th Amendment protections (even the watered down special needs version of them). How will that square with the current view of the State of California, that parolees are so safe that most of them can be put on a form of "parole lite" in which revocation is not a possibility, supervision does not happen, and parole is reduced to the single fact of being exempt from search and seizure protections?

Wednesday, September 30, 2009

Chinatown Part III: The Two Victims

Look for the burgeoning international celebrity crime story
of Roman Polanski’s arrest in Switzerland to turn into another global culture
war about American mores with one spin emphasizing US Puritanism and punitiveness
versus European civility and tolerance, and the other spin emphasizing US
concern for victims and European decadence and aristocratic disdain for popular
fears.Enjoy what is certain to be months
of coverage with attention to a few ironies from the golden penal state.Specifically:

(1)Polanski is himself the chief victim of the most
celebrated/transfixing crime in California (arguably US history); the 1969
murders of his wife, actress Sharon Tate, and his nearly born son (she was
within weeks of delivery), and four others (three of them close personal
friends), by cohorts of psycho-killer-guru Charles Manson.I argued in a post earlier this summer
that the Manson killings and subsequent trial, which transfixed the state and nation
for weeks during that pivotal year, helped to reset California’s politics to
the kind of “leave no prisoner behind” liberal/conservative consensus we have
on tough punishment that has dominated the state ever since.(I’m continuing to gather evidence that
is so far generally supportive of that claim and hope to have a short paper up
later this fall).As a victim of a
sexually tinged murder of his wife and child, Polanski is a “super-citizen” of
the Republic of California (see, chapter 3 of Governing through Crime), viewed
as an eternally recurring victim, suffering ever renewed damage by the memories
of his savage loss as each Manson family prisoner comes up for a parole
hearing, and accorded a growing set of specific rights in our
constitution.However, as a
fugitive from a child sex abuse crime he is at least presumptively guilty of
(having pled guilty and fled) he finds himself on the other side of that coin,
accorded no element of human empathy by the state or its leaders, protected
only by the increasingly shrinking set of federal constitutional rights
accorded defendants and prisoners.Polanski’s best defense is that the murder of Sharon Tate made him do
it.California voters recently
enshrined victim rights in the Constitution in a voter initiative that compared
the victim experience of parole hearings for murderers to being tortured.

(2)If Polanski’s international supporters are surprised at
California’s endurance on this issue they should not be.California’s willingness to prosecute
crimes to the fullest possible extent of the law was soberly marked last week
with the death in prison of Susan Atkins, the “Manson girl” who stabbed
Polanski’s wife and son to death whose death from brain cancer came after
almost forty years in prison (read her LA Times obit).Atkins, the longest serving woman in California history (but we’ve got a
lot of history to make) was recently denied parole for the umpteenth time,
being found a potential risk to Californians despite meeting the board in a
hospital gurney (her leg was amputated as part of cancer treatment) with a
prognosis of only months to live.

(3)Although I haven’t checked the sentencing range for the count
of unlawful sex with a minor in 1977, it is almost certainly far lower than it
would be today.California’s new
Determinate Sentence Law had just come into effect and the new fixed ranges
(based on statistical norms for the indeterminate sentencing practice) were
incredibly short by contemporary standards.In the decade following Polanski’s flight, public concern
about child sex abuse would mushroom into far ranging prosecutions of day care
workers and others for lurid and implausible (and unlike Polanski’s reported
assault, largely fabricated) crimes in which scores of people were sentenced to
decades in prison (some of them now released and exonerated).

(4)America’s penal state makes big city prosecutors potential
political stars as crime fighting heroes, but also exposes them to the full fury
of the vengeful public when their choices do not line up with the "maxi-max"
principle (the maximum punishment for the maximum number ofpeople).LA prosecutor Steve Cooley is notoriously “left” of the law
enforcement consensus on issues like three strikes, drug treatment not
incarceration, and the death penalty.Precisely because of that he probably felt vulnerable to any accusation
that he was being soft on a Hollywood criminal fugitive charged with sexually
assaulting a minor, whose supporters continued to make law enforcement, and
prosecutors specifically, the bad guys.

Tuesday, September 22, 2009

Foucault, Kristol, and the Arts of Government

He believed that government programs that were not paternalistic, but merely provided social insurance, would “engender larger loyalties,” which is “precisely what the art of government, properly understood, is all about.” David Brooks, Three Cheers for Irving.

I know relatively little about the late Irving Kristol's political thought, other than the intriguing fact that like the founder of the JSP program, Philip Selznick, he began political life as a participant in the Trotskyist (anti-Stalin but Marxist) wing of the labor movement and then moved to the right (Selznick remains well to the left of Kristol's last known political coordinates). But this phrase from David Brooks' celebration in this morning's NYTimes, of the longstanding intellectual dean of the modern neo-conservative movement caught my eye . Two quick thoughts.

First, it echoes almost exactly Michel Foucault's little known late turn to what he thought of as "liberalism" but which we might think of as "neo-liberalism" or even just conservativism. Having self identified as a Maoist for at least a few weeks in '68, and strongly supported Francois Mitterand's Socialist Party in the 1970s, Foucault in the last year's of his life criticized Mitterand's socialist government for lacking "an art of government" (quoted in Mike Gane and Terry Johnson, Foucault's New Domains (Sage 1993). In his writings and interviews of these years, Foucault suggested that liberalism was the political philosophy most faithful to the problem of governing as an art.

Second, it made me wonder what the Kristol of the 1960s (before he had himself abandoned liberalism) might have said about our current health care debate. Is Obamacare a version of "social insurance" that encourages "larger loyalties" in the wonderful phrase from Kristol quoted by Brooks? Or, is it the kind of "paternalism" that cannot take root in America's highly conservative (read individualist) culture? One thing is for sure. The modern Republican Party that Kristol did so much to stock with intellectual protein has largely abandoned serious reflection on the arts of government and Obama has at least expressly embraced precisely this kind of reflection (whether his product is worthy of that promise is open to question).

Tuesday, September 15, 2009

Jonathan Simon Joins Prawfs

I'm thrilled to announce that Jonathan Simon, who's been a regular guest blogger with us in the past, and who has been with us this past summer, will be joining Prawfs for the balance of the academic year. Welcome, Jonathan!

For those of you wondering: Jonathan is Associate Dean for Jurisprudence and Social Policy, Boalt Hall, School of Law, UC Berkeley; Faculty Co-Director, Berkeley Center for Criminal Justice; and author of Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP 2007).